NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//Oregon Coast Magazine vs. TCI Cablevision of Oregon, MO&O, DA 95-1803//$ $/76.970(e) Provision of schedules of leased access rates/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 DA 95-1803 In the Matter of ) Petition for Relief of) ) OREGON COAST MAGAZINE,) Petitioner,) ) vs. ) CSR 4340-L ) TCI CABLEVISION OF OREGON, INC., ) Respondent,) ) For Leased Access Channels ) MEMORANDUM OPINION AND ORDER Adopted: August 11, 1995 Released: August 21, 1995 By the Chief, Cable Services Bureau: I. Introduction 1. On September 21, 1994, Oregon Coast Magazine (herein "OCM") filed a letter with the Federal Communications Commission. The letter states, in its entirety that "Oregon Coast Magazine has produced half-hour, general entertainment shows for distribution on cable systems. We are aggrieved by the refusal of TCI Cablevision to make commercial channel capacity available in accordance with the Cable Television Consumer Protection and Competition Act of 1992 and your implementing regulations. "Specifically, TCI has not made available its current schedule of commercial leased access rates on the Newport OR system, despite the fact that such a schedule was published previously by them. A copy is attached. Its regional office in Corvallis OR has not responded to our request to discuss any technical concerns. The actions violate FCC regulations 76.970 (e) and 76.971(c). "I certify that a copy of this petition has been served on the TCI regional office in Corvallis OR and to the offices of the system in Newport." 2. On March 3, 1995, TCI Cablevision of Oregon, Inc. (herein "TCI") filed a response, in which it asserts that OCM "does not allege that TCI of Oregon has failed to make commercial channel capacity available and does not challenge the reasonableness of TCI of Oregon's rates for such capacity." TCI asserts further that the OCM letter is based solely on the allegation that TCI "has not made available its current schedule of commercial leased access rates" on TCI's Newport, Oregon cable system, and that at the time the letter was filed OCM already had received leased access rates from TCI, noting that a copy of its rates was attached to OCM's letter. TCI states further that new leased access rates were provided to OCM in a letter dated October 3, 1994, and asserts that the petition was groundless when filed, is certainly moot now, and therefore should be dismissed. 3. On March 23, 1995, the Commission received a letter dated March 19, 1995 from OCM in reply to TCI's response. The OCM letter in reply states that OCM has made several efforts since the filing of the petition to obtain schedules of rates from TCI, which have not been fully satisfied. For example, OCM states that it has requested rates for each of TCI's systems in Oregon that are large enough to be required to designate leased access capacity. OCM states that it has requested "a complete, inclusive schedule, not examples, of rates for the following systems," naming some eighteen separate Oregon communities. It points out that the schedule provided in an October 3, 1994 letter attached to TCI's response contained only a single quotation for an hour that was not mentioned in OCM's requests. To operate effectively as an independent programmer, OCM states that it needs to know enough about costs, including channel capacity costs, in each instance to determine what business plan to pursue, and that such is possible only if TCI will provide it with complete rate information. II. Background 4. In 1984, Congress amended the Communications Act of 1934 by adding among other things a commercial leased access requirement, pursuant to which cable operators with 36 or more activated channels must set aside part of their channel capacity for use by programmers that are not affiliated with them. The Cable Television Consumer Protection and Competition Act of 1992 (the "1992 Cable Act") revisited the leased access requirement and directed the Commission to establish, among other things, rules for determining maximum reasonable rates, and reasonable terms and conditions, for commercial leased access. Pursuant to that Congressional directive, the Commission established regulations applicable to leased access channels in its proceedings in Implementation of Sections of the Cable Television Consumer Protection and Competition Act of 1992; Rate Regulation, MM Docket 92-266, (the Rate Order), 8 FCC Rcd 5631 (1993), at  531-538. The new leased access regulations relevant to this case are found at 47 C.F.R.  76.970, 76.971 and 76.975. III. Discussion A. The Alleged Violation of Section 76.970(e) 5. The thrust of OCM's letter, which we will treat as a petition for relief filed under Section 76.975 of the rules, and reply letter is that OCM has made several efforts both before and after the filing of the petition to obtain complete schedules of rates from TCI for each of TCI's cable systems large enough to be required to designate leased access channels, and that the rate schedules requested have not been provided. It asserts that the rates which TCI has provided apply only for a few specific day parts, and that rate schedules have not been provided for each of TCI's cable systems, as requested. 6. TCI's response and the correspondence submitted with OCM's reply letter show that various sets of leased access rates have been provided to OCM since the filing of the petition. This suggests that TCI has not been as totally unresponsive to OCM's requests for rates and technical information as suggested in the petition. However, TCI's rate submittals consist of quotations of rates for a few specific time slots on specific cable systems. TCI has not shown that it has provided OCM with a complete schedules of part time rates for all day parts, or even with schedules of monthly rates for that matter. Nor has TCI shown that it has provided the requested rates for each of the cable systems serving the several communities for which requests for rates have been made. Although we cannot find on this record that TCI has completely refused to provide OCM with leased access rates, we must find that TCI has not fully complied with the requirements of Section 76.970(e) of the rules by providing all of the schedules of rates which OCM has requested for all of the cable systems to which those requests were directed. B. Maximum Monthly Rates 7. Accordingly, TCI will be required, pursuant to Section 76.970 of the rules, to establish and provide to OCM a schedule of leased access rates applicable to prospective leased access customers for each cable system serving the communities for which a request has been made by OCM and for which it is required to designate leased access channels. Additionally, TCI will be required to keep on file and make available for Commission inspection information showing the number of subscribers for these systems as of March 31, 1995 and any other relevant data, information, and supporting calculations used to determine the maximum monthly implicit net fees, as provided by Section 76.970 of the rules. C. Schedule of Part Time Rates 8. We will also require TCI to establish a schedule of part-time rates for all day parts for each of the cable systems serving the communities for which OCM has requested rates. We will also require it to maintain on file adequate records, consistent with Section 76.970(e) of our rules, that show the total monthly revenues derived from part time users of each leased access channel and the maximum monthly charge for a full leased access channel for each cable system. We note, in this regard, that in order to assure that a cable operator's maximum monthly rate is not exceeded by the revenues generated from charges for part-time channel capacity, we have in other cases required cable operators to establish a schedule of rates, or rate card, for different times of day pursuant to which, if all times were used, the sum of the part-time charges for any single leased access channel would not exceed its maximum monthly rate for a leased access channel calculated in accordance with Section 76.970 or our rules. We have required that such rate structure be reasonably reflective of empirical time of day values and not serve merely as a mechanism to retard use. D. Technical Concerns 9. OCM asserts in its reply letter that TCI has quoted $50 per hour as costs for technical support and $1,600 per month as the cost of handling a new tape per week at two headends. OCM requests the Commission to "provide the formula by which they (sic) calculate an ongoing, unavoidable level of 'technical support' and justify both the cost and the amount of time." The Commission recognized in the Rate Order that a minimal level of technical cooperation is likely to be necessary in order for a cable operator to deliver leased access programming over a cable system and prohibited cable operators from unreasonably refusing to cooperate in the provision of channel capacity. Although no specific regulations were adopted that address the costs of providing the technical support matters raised by the petition, the Commission has required, in Section 76.971(c) of the rules, that cable operators offer to leased access programmers the same services that would be offered to comparable programming services that use its non-leased access channel capacity and that they demand reimbursement only for the reasonable cost of such services. We will require that TCI comply with these requirements. IV. Ordering Clauses 10. Accordingly, IT IS ORDERED that the petition Oregon Coast Magazine ("OCM") IS GRANTED to the extent indicated above and in all other respects IS DENIED. 11. IT IS FURTHER ORDERED that TCI Cablevision of Oregon, Inc. ("TCI") shall, within thirty days of the release date of this order, (a) provide to OCM a schedule of monthly leased access rates for each cable system serving the communities for which OCM has requested rates and for which it is required to designate leased access channels and (b) maintain on file information showing the number of subscribers to its cable systems in each of those communities as of March 31, 1995 and any other data, information and calculations used to determine the maximum implicit fees for leased access, as provided in Section 76.790 of the Commission's rules. 12. IT IS FURTHER ORDERED that TCI shall, within thirty days of the release date of this order, (a) establish a reasonable schedule of rates, or rate card, for all times of day for each cable system serving the communities for which OCM has requested rates, and (b) maintain on file adequate records, consistent with Section 76.970(e) of our rules, which show that, if all times were used, the sum of the part-time charges for any single leased access channel would not exceed its maximum monthly rate for a leased access channel calculated in accordance with Section 76.970 or our rules. 13. IT IS FURTHER ORDERED that TCI shall provide OCM the same technical services that it provides to comparable programming services that use its non-leased access capacity and shall demand reimbursement only for the reasonable cost of such services. 14. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Service Bureau